Citation Nr: 1507722
Decision Date: 02/23/15 Archive Date: 02/26/15
DOCKET NO. 12-33 160 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Whether the reduction of the evaluation of service-connected left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee, from 30 percent to 10 percent disabling, effective January 1, 2013, was proper.
2. Entitlement to an increased rating for service-connected left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Cherry, Counsel
INTRODUCTION
The Veteran served on active duty from August 1988 to November 1989.
This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
In October 2013, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the electronic record.
At the hearing, the undersigned Veterans Law Judge allowed the record to be held open for 30 days. Hearing transcript, page 2. The Veteran submitted additional evidence and waived agency of original jurisdiction consideration of that evidence. 38 C.F.R. § 20.13014 (2014).
The Board's review includes the paper and electronic records.
In February 2012, the Veteran filed a claim for an increased rating for the left knee disability and the RO later that year reduced the evaluation for the left knee disability from 30 percent disabling to 10 percent disabling. At the hearing, the Veteran testified that not only did he want a restoration of the 30 percent disability rating for the left knee disability but also he wanted an increased rating for the left knee disability. Hearing transcript, page 16. In light of the above, the issues are as stated on the title page.
The issue of entitlement to an increased rating for service-connected left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In an October 2012 rating decision, the RO reduced the disability rating for left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee, from 30 percent to 10 percent disabling, effective January 1, 2013.
2. At the time of the reduction in the assigned disability rating from 30 to 10 percent on January 1, 2013, the competent medical evidence did not clearly demonstrate that a material improvement in the severity of the Veteran's service-connected left knee disability had actually occurred and that any such improvement would be maintained under ordinary conditions of life as to warrant that large of a decrease in the rating of his left knee disability
CONCLUSION OF LAW
The reduction in the rating assigned for the service-connected left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee, from 30 percent to 10 percent disabling, effective January 1, 2013, was not warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 4.1, 4.2, 4.10, 4.13, 4.71a, Diagnostic Code 5299-5261 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act
The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary.
Governing law and regulations
Ratings reductions
The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2014). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).
Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Brown v. Brown, 5 Vet. App. 413, 421 (1993). Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id.
In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c), however, specify that the provisions of 38 C.F.R. § 3.344(a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities that have not become stabilized and are likely to improve.
In a May 2010 rating decision, the RO assigned a 30 percent disability rating for the left knee disability effective April 2, 2010. Therefore, the greater protections, set forth in 38 C.F.R. § 3.344, do not apply in this case because the 30 percent disability rating for the left knee disability was not in effect for five or more years at the time of the reduction. In fact, the 30 percent rating was in effect for less than three years at the time of the reduction.
Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e).
Analysis
In a July 12, 2012, letter, the Veteran was informed of a proposed reduction in the rating assigned to his left knee disability. He was afforded 60 days to respond. Thereafter, the RO promulgated a rating decision in October 2012, implementing the proposed reduction, effective from January 1, 2013. The RO properly applied the regulations regarding the procedure for notification of reductions in ratings. The question that remains is whether the RO correctly applied the substantive law and regulations regarding a reduction.
The RO explicitly made a determination that there was an improvement in the disability in that the RO found that the medical evidence show range of motion was zero to 110 degrees and that there was no objective evidence of instability or patellar subluxation/dislocation. The RO also found that a 20 percent disability rating was not warranted. The RO, however, did not make a specific determination that there is an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. Moreover, although the RO included 38 C.F.R. §§ 4.1 and 4.10 in a November 2012 statement of the case, the RO did not apply 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13, or Schafrath.
While the three joint stability tests of the left knee were negative at the April 2012 VA examination, the Veteran's spouse, a physical therapist (see hearing transcript, page 17), reported in a November 2013 statement that the appellant's left knee disability had continually worsened through the years. More specifically on the matter of the degree of instability, the spouse reported that the claimant had experienced periodic episodes of his left knee giving out and falling down stairs, in grocery stores, and in the backyard.
Although the RO addressed the adequacy of the May 2012 VA examination in the November 2012 statement of the case due to the Veteran's assertion that the range-of-motion testing was done for the left knee, the RO did not indicate that it had reviewed the entire recorded history of the disability when it determined that the evidence reflects an actual change in the disability as to warrant a significant decrease in the evaluation - that is, to reduce the left knee disability rating from 30 percent disabling to 10 percent disabling. In this regard, the June and October 2012 rating decisions reflect that the RO only considered the April 2010 and May 2012 VA examination reports and some VA treatment records. The RO did not consider other lay and medical evidence, to include February 1990, March 1991, January 2005, and March 2006 VA examination reports. Therefore, the RO did not ascertain based upon review of the entire recorded history of the left knee disability whether the evidence reflects an actual change in the disability and whether the May 2012 VA examination report is based upon a thorough examination. Brown, 5 Vet. App. at 421. These requirements for evaluation of the complete medical history of the claimant's disability operate to protect claimants against adverse decisions based on a single incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the disability. Schafrath, 1 Vet. App. at 594. Whether or not a disability has improved cannot be determined without reference to prior records detailing the history of the disability. Id.
In short, at the time of the reduction in the assigned disability rating from 30 to 10 percent on January 1, 2013, the competent medical evidence did not clearly demonstrate that a material improvement in the severity of the Veteran's service-connected left knee disability had actually occurred and that any such improvement would be maintained under ordinary conditions of life as to warrant that large of a decrease in the rating of his left knee disability
ORDER
Restoration of the 30 percent disability rating for service-connected left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee, effective January 1, 2013, is granted, subject to the laws and regulations governing the award of monetary benefits.
REMAND
The Veteran testified that he is being treated at the North Platte VA Community-Based Outpatient Clinic. Hearing transcript, pages 4-5. The RO last obtained records from that facility in February 2013 and should obtain any additional records from that facility since February 2013.
For increased rating claims that do not involve an initial assignment of a disability rating, such as the one being remanded, pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. The appellant has been treated at the Center for Health, and that facility has only submitted treatment records dated from March to May 2012. The RO should obtain all records from the Center for Health from February 2011 (one year prior to date of claim) to the present.
Given the passage of time since the May 2012 VA examination, another VA examination is warranted.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to identify all treatment for his left knee disability and obtain any identified records. Obtain all records from the Center for Health from February 2011 to the present. Regardless of the claimant's response, obtain all records from the North Platte VA Community-Based Outpatient Clinic from February 2013 to the present.
2. Thereafter, schedule the Veteran for a VA examination to determine the nature and extent of his left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to his left lateral meniscal tear, status post arthroscopic repair, residual pain symptoms of the left knee. A complete rationale for any opinion offered must be provided.
3. Thereafter, readjudicate the issue on appeal. If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs